United States Court of Appeals For the First Circuit
No. 22-1837
GIBSON FOUNDATION, INC.,
Plaintiff, Appellant,
v.
ROB NORRIS; PIANO MILL GROUP, LLC,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Indira Talwani, U.S. District Judge]
Before
Barron, Chief Judge, Lynch and Howard, Circuit Judges.
Kurt Schuettinger, with whom Andrea Bates, Bates & Bates LLC, Steven D. Howen, and Law Offices of Steven Howen, were on brief, for appellant. Daniel J. Gibson, with whom SKB, Attorneys was on brief, for appellees.
December 4, 2023 BARRON, Chief Judge. This case involves a rhinestone-
adorned piano, the now-deceased entertainer Liberace, a massive
snowstorm, and a collapsed roof. But the appeal that is before us
turns on something far less dramatic: the ins and outs of
Massachusetts bailment and contract law. For the reasons set forth
below, we conclude that this body of law requires that we reverse
the grant of summary judgment to the defendants on the plaintiff's
claims that concern the piano but affirm the denial of summary
judgment to the plaintiff on those same claims.
I.
The plaintiff is Gibson Foundation, Inc. ("Gibson
Foundation"), which is based in Nashville, Tennessee, and is the
charitable arm of Gibson Brands, Inc. ("Gibson Brands").1 Gibson
Brands sells several lines of musical instruments and accessories,
including a line of pianos that Baldwin Piano & Organ Company
("Baldwin") manufactures.
Baldwin is an American piano manufacturer that has been
a subsidiary of Gibson Brands since 2001. That year, Baldwin filed
for bankruptcy and was subsequently purchased by General Electric
Capital Corp. ("GE"). GE then assigned its rights, title, and
interest in the asset purchase agreement to Gibson Piano Ventures,
Inc. ("Gibson Piano Ventures") and designated Gibson Piano
Unless otherwise specified, the facts set forth are not in 1
dispute.
- 2 - Ventures as the buyer of Baldwin and "substantially all" its
assets.2
The defendants are Rob Norris and The Piano Mill Group,
LLC ("Piano Mill"). Norris owns and operates Piano Mill, which is
based in Gloucester, Massachusetts, and sells pianos on a retail
basis, services pianos, and offers a location for piano lessons.
At all relevant times, Norris and Piano Mill were authorized retail
sellers of Baldwin pianos.
Gibson Foundation filed suit against Norris and Piano
Mill on December 16, 2019, in the United States District Court for
the Middle District of Tennessee, based on diversity of
citizenship. See 28 U.S.C. § 1332. The complaint alleged claims
under Tennessee law for breach of contract, breach of bailment,
and conversion. The complaint alleged that Norris and Piano Mill
had breached a warehousing agreement and bailment with Gibson
Foundation when they refused to return to Gibson Foundation -- upon
Gibson Foundation's request -- a piano that Liberace had used in
his performances.3
The Tennessee district court concluded that there was no
personal jurisdiction over Norris and Piano Mill and that venue
2The record contains no evidence explaining the relationship between Gibson Brands and Gibson Piano Ventures. 3Gibson Brands filed for bankruptcy in 2018 and subsequently conveyed its rights in the piano at issue in this appeal to Gibson Foundation.
- 3 - was improper. The case was then transferred to the United States
District Court for the District of Massachusetts. Gibson
Foundation's amended -- and now operative -- complaint in the
United States District Court for the District of Massachusetts
sets forth several claims against Norris and Piano Mill, all of
which are brought under Massachusetts law. This appeal concerns
two of those claims, which are for breach of bailment and breach
of contract.
The breach-of-bailment claim alleges, as did Gibson
Foundation's earlier breach-of-bailment claim under Tennessee law,
that the transfer of the Liberace piano from Gibson Brands to
Norris and Piano Mill was a bailment and that Norris and Piano
Mill are liable for breach of bailment because they refused to
return the piano to Gibson Foundation when they were requested to
do so. The breach-of-contract claim alleges, as did Gibson
Foundation's earlier breach-of-contract claim under Tennessee law,
that the transfer of the same piano from Gibson Brands to Norris
and Piano Mill was made pursuant to a warehousing agreement between
Gibson Brands and Norris and Piano Mill, and that Norris and Piano
Mill breached the agreement by not returning the piano to Gibson
Foundation when they were requested to do so.
Norris and Piano Mill answered the complaint while also
filing counterclaims, though none of the District Court's rulings
on the counterclaims are at issue in this appeal. In answering
- 4 - Gibson Foundation's complaint, Norris and Piano Mill asserted that
Gibson Brands had no ownership interest in the piano at the time
of Gibson Brands's initial request that the piano be returned.
Norris and Piano Mill further asserted in answering the complaint
that Gibson Brands sent the e-mail request to return the piano
only after there had been widespread media coverage of Piano Mill
having a Liberace piano and the roof of one of the company's
buildings having collapsed during a massive snowstorm.
The parties filed cross-motions for summary judgment on
January 28, 2022. Norris and Piano Mill sought summary judgment
on, among other claims, Gibson Foundation's breach-of-bailment and
breach-of-contract claims under Massachusetts law. Norris's and
Piano Mill's motion included as an exhibit an appraisal of the
piano that contained pictures of it, approximated its value, and
estimated that 10,000 rhinestones originally adorned it. Gibson
Foundation sought summary judgment as to all its claims and
Norris's and Piano Mill's counterclaims.
On the breach-of-bailment claim, the District Court
granted Norris and Piano Mill summary judgment and denied Gibson
Foundation summary judgment on the ground that Gibson Foundation's
claim for breach of bailment is time-barred under the relevant
statute of limitations. On the breach-of-contract claim, the
District Court granted Norris and Piano Mill summary judgment and
denied Gibson Foundation summary judgment on the ground that
- 5 - "[Gibson] Foundation has not produced sufficient evidence from
which a jury could find an agreement on the material terms of a
contract." Gibson Foundation appeals both the grants of summary
judgment to Norris and Piano Mill on its breach-of-bailment and
breach-of-contract claims and the denials of its motion for summary
judgment on those same claims.
II.
We review the District Court's summary-judgment rulings
de novo and draw all inferences in favor of the party against whom
summary judgment was entered. Pleasantdale Condos., LLC v.
Wakefield, 37 F.4th 728, 732-33 (1st Cir. 2022). Summary judgment
is appropriate if, based on the record, there remains no dispute
of material fact -- that is, if, based on the record, there is no
factual determination which a "rational factfinder" could make as
to the "existence or nonexistence" of a fact that "has the
potential to change the outcome of the suit" -- such that "the
moving party is entitled to judgment as a matter of law." Borges
ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 4-5 (1st Cir. 2010).
The fact that the parties have filed cross motions and
appealed those cross motions does not alter these general
standards. See Wightman v. Springfield Terminal Ry. Co., 100 F.3d
228, 230 (1st Cir. 1996). Rather, we review each party's motion
independently, viewing the facts and drawing inferences as
- 6 - required by the applicable standard, and we determine, for each
side, the appropriate ruling. See id.
III.
We start with the challenge to the District Court's grant
of summary judgment on the breach-of-bailment claim to Norris and
Piano Mill. The District Court relied for that ruling on the
ground that the claim is time-barred. The question of whether the
claim is time-barred is one of Massachusetts law. See West v.
Conrail, 481 U.S. 35, 39 n.4 (1987) ("When the underlying cause of
action is based on state law, and federal jurisdiction is based on
diversity of citizenship, state law . . . provides the appropriate
period of limitations . . . .").
Our analysis begins with a review of the relevant legal
background, which reveals that the key precedent for us to consider
is a decision of the Massachusetts Appeals Court ("MAC"), Aimtek,
Inc. v. Norton Co., 870 N.E.2d 1114 (Mass. App. Ct. 2007). We
then explain why, given that precedent, we must reverse the grant
of summary judgment. We make clear, however, that Aimtek does not
affect resolution of Norris's and Piano Mill's alternate argument
that Gibson Brands never had ownership of the piano, which we
address in Part IV.
A.
The parties do not dispute that Gibson Foundation's
breach-of-bailment claim is timely if the six-year limitations
- 7 - period that Massachusetts sets forth for certain contract claims
applies, see Mass. Gen. Laws ch. 260, § 2, or that the claim is
time-barred if, as the District Court held, the three-year
limitations period that Massachusetts sets forth for tort claims
applies instead, see Mass. Gen. Laws ch. 260, § 2A. The parties'
dispute concerns only whether the District Court was right to hold
that, on this record, it is indisputable that Gibson Foundation's
breach-of-bailment claim is in effect no different from a claim
for conversion and replevin and so for that reason is subject to
the three-year limitations period for tort claims. Gibson
Foundation contends that the District Court erred in so ruling
because a reasonable juror could find based on the record that the
claim is subject to the six-year limitations period that applies
to certain contract claims.
We assume for present purposes that there is a genuine
issue of material fact in dispute as to whether, as Gibson
Foundation alleges, there was both a valid bailment and a breach
of that bailment, such that the breach-of-bailment claim would
survive summary judgment if it were timely. After all, if there
were no such genuine issue of material fact in dispute, then there
would be no reason for us to address the timeliness issue at all,
as in that case the grant of summary judgment to Norris and Piano
Mill could be affirmed even if the claim were timely. See John G.
Danielson, Inc. v. Winchester-Conant Props. Inc., 322 F.3d 26, 37
- 8 - (1st Cir. 2003) (explaining that a judgment may be affirmed on any
ground manifest in the record).
No Massachusetts statute sets forth the limitations
period that applies specifically to a breach-of-bailment claim.
Thus, under Massachusetts law, we must look "to the 'gist of the
action' or the essential nature of the plaintiff's claim,"
Hendrickson v. Sears, 310 N.E.2d 131, 132 (Mass. 1974), to
determine the applicable limitations period.
The District Court appears to have undertaken this
inquiry and reasoned that, under Massachusetts law, the "essential
nature" of all breach-of-bailment claims makes any such claim a
species of a claim for replevin and conversion, both of which are
claims that sound in tort. The District Court then appears to
have concluded on that basis that Gibson Foundation's breach-of-
bailment claim is subject to a three-year limitations period, as
that claim was in its nature a tort claim just as surely as is a
claim for replevin or conversion.
In Aimtek, however, the MAC explained that "no hard and
fast rule has emerged to dictate the applicable limitations period
for claims arising from bailments" based on their "essential
nature." 870 N.E.2d at 1118. Rather, the MAC concluded that
while, under Massachusetts law, some breach-of-bailment claims are
properly subject to the three-year limitations period for tort
claims, others are properly subjected to the six-year limitations
- 9 - period for certain contract claims. Id. at 1117-20. The MAC then
proceeded in Aimtek to assess whether the "essential nature, or
gist" of the plaintiff's breach-of-bailment claim in that specific
case made it subject to the three-year or the six-year limitations
period, id. at 1119-20, and concluded that the claim's contractual
nature made the longer limitations period applicable, id. at 1120.
Of course, a decision by the MAC does not necessarily
bind us here, as our task is to determine how the highest court of
Massachusetts, which is the Massachusetts Supreme Judicial Court,
would rule on the timeliness issue. See Showtime Ent., LLC v.
Town of Mendon, 769 F.3d 61, 79 (1st Cir. 2014). But we see no
basis for engaging in a different inquiry to determine the
applicable limitations period for this breach-of-bailment claim
than the one in which the MAC engaged in Aimtek. Indeed, the
District Court's analysis supplies no reason for our doing so, as
the District Court appeared to be relying, in part, on Aimtek
itself in concluding that this claim was subject to the limitations
period for tort claims. Moreover, on appeal, the parties appear
to agree that if the reasons that Aimtek gave for determining that
the "essential nature, or gist," 870 N.E.2d at 1119, of the breach-
of-bailment claim at issue there was contractual in nature equally
support the conclusion that the breach-of-bailment claim at issue
here is also contractual in nature, then the six-year limitations
period would apply to this claim just as the MAC held it applied
- 10 - to that claim. As a result, assuming that this breach-of-bailment
claim otherwise can survive summary judgment, we must decide
whether a reasonable juror could find based on the record that the
claim at issue here is in all relevant respects the same as the
claim in Aimtek. Reviewing de novo, Pleasantdale Condos., 37 F.4th
at 732-33, we conclude, for the reasons that we will next explain,
that a reasonable juror could so find.
B.
In Aimtek, a Massachusetts company, Aimtek, Inc.
("Aimtek"), entered into a contract in 1984 with another
Massachusetts-based business, Norton Company ("Norton"), to
provide liquid nitrogen and argon gases to Norton. Under that
contract, Norton had a lease with Aimtek to store two 1,500-gallon
tanks, owned by Aimtek, at Norton's Worcester, Massachusetts,
facility to hold such gas products. Aimtek, 870 N.E.2d at 1116.
Roughly a decade later, in 1994, Norton notified Aimtek
that it was terminating the contract. Id. After the contract was
terminated, however, Aimtek left the tanks with Norton, at Norton's
request, in the event that Norton wished to resume purchasing gas
for those tanks from Aimtek in the future. Id. at 1116-17.
Norton later scrapped the tanks, and more than three but
less than six years after Aimtek learned that the tanks had been
scrapped, Aimtek filed a claim against Norton in Massachusetts
state court that alleged that Norton was in breach of a bailment
- 11 - with respect to the tanks. Id. Following a jury verdict in
Aimtek's favor on the claim, Norton moved for judgment
notwithstanding the verdict on the ground that the three-year
limitations period for tort claims applied to Aimtek's breach-of-
bailment claim and thus that the claim was time-barred. Id. at
1117. The trial court denied the motion after determining that
the six-year limitations period for certain contracts claims
applied instead, Aimtek, Inc. v. Norton Co., No. 01-0709C, 2005 WL
4924656 (Mass. Supp. Sept. 7, 2005), and the MAC then affirmed
that ruling on appeal, Aimtek, 870 N.E.2d at 1120.
The MAC reasoned that the six-year limitations period
for certain contract claims applied because the record supportably
showed that the underlying bailment stemmed from "a consensual
arrangement between the parties that the two 1,500-gallon tanks
would remain at Norton's facility after the written rental
agreement expired, in case Norton wished to resume gas deliveries
in the future." Id. at 1119 (emphasis added). Moreover, the MAC
emphasized that the record sufficed to show that the bailment
established by this consensual arrangement was for the "mutual
benefit" of the parties and so was not a gratuitous bailment in
which Norton received "no benefit or compensation from the tanks
left behind at its facility." Id. The MAC based this latter
determination on the ground that the record sufficed to show that,
under the consensual arrangement that resulted in the bailment,
- 12 - Aimtek benefitted by avoiding the expense of removing the tanks
while Norton benefitted because "the tanks were left in Norton's
possession at Norton's request, to facilitate possible future gas
deliveries." Id.
The MAC did make a point of explaining that the
determination of whether a bailment was gratuitous or for the
mutual benefit of the bailor and the bailee does not necessarily
determine whether a breach-of-bailment claim is subject to the
three-year limitations period for tort actions or the six-year
limitations period for certain contract actions. Id. at 1119 n.5.
The MAC concluded that "[t]he cases do not lend themselves to such
a convenient dichotomy." Id. But the MAC still ruled that the
bailment in question was subject to that latter contract-based
limitations period because the underlying bailment was the result
of a "consensual arrangement . . . for the parties' mutual
benefit." Id. at 1119-20 (emphasis added).
We see nothing in the record to distinguish the case at
hand from Aimtek. Rather, we conclude that a reasonable juror
could find based on the record that the breach-of-bailment claim
here, like the breach-of-bailment claim in Aimtek, stems from a
consensual arrangement between the parties that mutually
benefitted them and not from a merely gratuitous bailment, as
Norris and Piano Mill contended is the case for the first time at
- 13 - oral argument. In this regard, we conclude that, based on the
record, a reasonable juror could find as follows.
On June 20, 2011, Baldwin's business-development
manager, Tom Dorn, e-mailed several people, including Norris,
about the immediate availability of two new model BD275/BH275
concert grand pianos from Baldwin Dongbei. Norris then responded
by e-mail that "Piano Mill would still very much like to have a
Baldwin concert grand to use for symphony rentals and promotional
opportunities" but that he was "not currently in a position to
shell out the 30k to purchase one outright." In addition, Norris
mentioned in the e-mail that his business partner was connected to
several touring acts and wondered whether Dorn might be able to
come up with a "creative arrangement" to help both Piano Mill and
Baldwin gain exposure.
Dorn responded, in turn, with an e-mail that stated that
such an arrangement was "beyond [his] scope" but that he would
forward Norris's e-mail to someone in Gibson Brands's
entertainment-relations department. Norris sent Dorn an e-mail in
response in which Norris thanked Dorn and added as "just another
thought" that Piano Mill had a full-service restoration shop and
that, "[i]f there was a road worn concert grand in Baldwin[']s
stable," Norris would be able to do any restoration required "to
get it to concert level play and back on the road."
- 14 - After this e-mail exchange, Norris had several phone
calls with Dorn and Jim Felber, an employee in Gibson Brands's
entertainment-relations department, about a Baldwin model SD-10 in
which Norris might be interested. That model was the Liberace
piano that is now at the center of this dispute.
During one phone call between Norris and Felber about
the piano, Felber told Norris that it was on the seventh floor of
the Manhattan Center in the Hammerstein ballroom, which was being
renovated. Felber further told Norris in the phone call that the
piano would be "all yours" if Norris could remove it by the end of
the week.
Subsequently, on July 11, 2011, Norris's contractors
moved the piano from the Hammerstein ballroom to Norris's
restoration shop in Hampton, Massachusetts. After picking up the
piano, Norris e-mailed Dorn and Felber to "[t]hank [them] both for
[the] opportunity," and Norris asked whether he could "make some
cosmetic repairs as well as . . . do some fine regulation" on the
piano. Felber responded that he was "OK with repairs and aware of
missing pieces."
In the years following, the piano stayed in Norris's and
Piano Mill's possession, and the piano was used as a promotional
tool, including in connection with a Liberace biopic. It was not
until years later, after Gibson Brands and Gibson Foundation
executed a bill of sale purporting to transfer ownership of a
- 15 - "Baldwin Liberace SD-10" to Gibson Foundation, that Gibson
Foundation sued Norris and Piano Mill over the Liberace piano at
the center of this dispute.
Based on the above communications and events, a
factfinder could reasonably determine that, insofar as there was
a bailment of the piano at all, it was a "consensual arrangement,"
id. at 1119, between Gibson Brands and Norris and Piano Mill, as
Gibson Brands requested that Norris and Piano Mill take possession
of the piano, and Norris and Piano Mill agreed to do so. Moreover,
a factfinder could also reasonably determine from these
communications and events that Gibson Brands as bailor and Norris
and Piano Mill as bailees each benefitted from this consensual
arrangement, as a reasonable jury could find based on the record
that Gibson Brands obtained storage for a valuable asset and
avoided the costs of moving the piano while Norris and Piano Mill
obtained substantial publicity and marketing opportunities from
having possession of the piano.
Norris and Piano Mill do make one further argument in
defense of the District Court's statute-of-limitations ruling,
although they advanced this argument, too, for the first time at
oral argument. They contend that because there was a contract
between the bailor and the bailee in Aimtek, there was a basis
there that is not present here for treating that breach-of-bailment
claim as contractual in nature. But the contract in Aimtek that
- 16 - Norris and Piano Mill identify was a rental agreement that had
expired prior to the bailment. Id. at 1116. We thus do not see
how Aimtek may be distinguished on this ground. Accordingly, we
hold that Norris and Piano Mill are not entitled to summary
judgment on Gibson Foundation's breach-of-bailment claim on the
ground that the claim is time-barred.
IV.
Norris and Piano Mill argue, as a fallback, that they
are entitled to summary judgment on the breach-of-bailment claim
even if the claim is not time-barred because, as a matter of law,
the claim is without merit. See John G. Danielson, 322 F.3d at 37
(explaining that a judgment may be affirmed on any ground manifest
in the record). They point out that a bailment "is the delivery
of goods by their owner to another for a specific purpose, and the
acceptance of those goods by the other, with the express or implied
promise that the goods will be returned after the purpose of the
delivery has been fulfilled." Goudy & Stevens, Inc. v. Cable
Marine, Inc., 924 F.2d 16, 18 (1st Cir. 1991) (emphasis added);
see Nash v. Lang, 167 N.E. 762, 765 (Mass. 1929). Thus, they
explain, one of the essential elements of a bailment is that the
bailor owns, or holds title to, the property in question, see
Goudy, 924 F.2d at 18, and they stress that the burden of proving
the existence of a bailment under Massachusetts law rests with the
party that alleges the breach of a bailment, see Orient Overseas
- 17 - Container Line v. John T. Clark & Sons of Bos., Inc., 229 F. Supp.
2d 4, 15 (D. Mass. 2002). They then contend that Gibson Foundation
has failed to meet its burden to show that there is a supportable
basis for finding that it has proved the element of ownership
because "[Gibson] Foundation [has] provided nothing more than
unsupported, conclusory statements and vague documentation in
support of its claim that [its] alleged predecessor in interest,
Gibson Brands, Inc., owned the piano during the timeframe up to
and including July 2011" -- the month in which Norris and Piano
Mill picked up the piano and transferred it to their restoration
shop in Hampton, Massachusetts.4
To back up this argument, Norris and Piano Mill point to
the fact that Cesar Gueikian, Brand President of Gibson Brands,
testified that, although he believed Gibson Brands acquired the
piano through the 2001 asset purchase agreement of Baldwin, he was
unaware of the existence or location of any inventory documents
that show the piano coming into Gibson Brands's possession.
Moreover, we note that the record does show that, while the asset
Norris and Piano Mill also contend that Gibson Foundation's 4
breach-of-bailment claim fails as a matter of law because Gibson Foundation cannot show that a reasonable juror could find based on the record that the material terms -- whether express or implied -- of the alleged bailment agreement are sufficiently definite to create an enforceable agreement. Because this contention mirrors Norris's and Piano Mill's contention as to why Gibson Foundation's breach-of-contract claim fails, we address this argument in Part V, where we discuss the claim for breach of contract.
- 18 - purchase agreement did contemplate the sale of Baldwin's "personal
property" and specified that certain categories of personal
property would be excluded from the sale, the agreement did not
identify whether any pianos were included among the personal
property being sold.
In addition, Norris and Piano Mill point to the fact
that, when Gibson Brands filed for bankruptcy in 2018, Gibson
Brands did not disclose the piano as one of its assets in its
filings. Norris and Piano Mill argue that because Gibson
Foundation cannot point to any evidence in the record of Gibson
Brands having title or ownership of the piano, there is no
supportable basis in the record for finding that Gibson Foundation
can meet its burden to show that there was a bailment. The
contention is that, to meet that burden, Gibson Foundation must
show that a reasonable juror could find based on the record that
Gibson Brands owned the piano at the time that Norris and Piano
Mill took possession of it. Therefore, Norris's and Piano Mill's
argument goes, Gibson Foundation's breach-of-bailment claim fails
as a matter of law given that Piano Mill cannot breach a bailment
that does not exist.
Under Massachusetts law, however, the burden to prove
the ownership element for a bailment may be satisfied with proof
of the bailor's possession of the property at issue at the time
that the claimed bailment was established, given that "possession
- 19 - [of personal property] is prima facie evidence of title, good
against everybody but one proving property; that is, against any
one but the right owner." Magee v. Scott, 63 Mass. (9 Cush.) 148,
150 (1851); see Hurley v. Noone, 196 N.E.2d 905, 908 (Mass. 1964).
And it is undisputed that Gibson Brands physically possessed the
piano before Gibson Brands transferred it to Norris and Piano Mill.
Thus, as Norris and Piano Mill identify no evidence that anyone
other than Gibson Brands owned the piano before or during the time
of the piano transfer, we see no basis for affirming the District
Court's grant of summary judgment to Norris and Piano Mill on the
ground that, as a matter of law, Gibson Foundation cannot show
that a reasonable juror could find based on the record that Gibson
Brands owned the piano at the relevant times.5 See Magee, 63 Mass.
at 150.
Our determination on this score does not mean, however,
that there is merit to the related contention by Gibson Foundation
that we must reverse the District Court's denial of Gibson
Foundation's own summary-judgment motion on the claim. To be sure,
as we have explained, Norris and Piano Mill have not conclusively
rebutted Gibson Foundation's prima facie case for ownership of the
piano because they have not indisputably established that a party
Norris and Piano Mill do not argue that, if there was a 5
bailment, it was between them and Gibson Brands, not them and Gibson Foundation -- the current plaintiff. We thus do not address that contention.
- 20 - other than Gibson Brands was the rightful owner when the piano was
in Gibson Brands's possession. Id. But it remains the case that
the record contains no inventory documents that show how the piano
came into Gibson Brands's possession and that the record shows
that Gibson Brands failed to include the piano as one of its assets
in its 2018 bankruptcy filings. A reasonable factfinder could
conclude on this record, therefore, that Gibson Brands did not own
the piano at the relevant times. Thus, because there is a genuine
dispute of material fact as to the ownership issue, we affirm the
denial of the grant of summary judgment to Gibson Foundation on
this claim.
We turn our attention now to Gibson Foundation's breach-
of-contract claim. "To prove a breach of contract under
Massachusetts law, a plaintiff must show 'that there was a valid
contract, that the defendant breached its duties under the
contractual agreement, and that the breach caused the plaintiff
damage.'" Shaulis v. Nordstrom Inc., 120 F. Supp. 3d 40, 54 (D.
Mass. 2015) (quoting Guckenberger v. Boston Univ., 957 F. Supp.
306, 316 (D. Mass. 1997)).
As we have explained, a reasonable juror could find based
on the record both that the bailment at issue here was a consensual
arrangement between Gibson Brands and Norris and Piano Mill and
that this arrangement was for the "mutual benefit" of the parties
- 21 - to it, Aimtek, 870 N.E.2d at 1119. Our question with regard to
the breach-of-contract claim, however, is whether, Massachusetts
bailment law aside, a reasonable juror could find based on the
record that there was a warehousing agreement6 between the parties
as to this piano such that there was a valid contract between them.
For, if a reasonable juror could not so find, then there could be
no breach-of-contract claim that could survive summary judgment.
Under Massachusetts law, "[i]t is axiomatic that to
create an enforceable contract, there must be agreement between
the parties on the material terms of that contract, and the parties
must have a present intention to be bound by that agreement."
Situation Mgmt. Sys., Inc. v. Malouf, Inc., 724 N.E.2d 699, 703
(Mass. 2000). And while "[i]t is not required that all terms of
the agreement be precisely specified, and the presence of undefined
or unspecified terms will not necessarily preclude the formation
of a binding contract[,] . . . [t]he parties must . . . have
progressed beyond the stage of 'imperfect negotiation.'" Id.
(citation omitted). Moreover, although an exchange of e-mail
communications can constitute a contract under Massachusetts law,
see Fecteau Benefits Grp., Inc. v. Knox, 890 N.E.2d 138, 145 (Mass.
App. Ct. 2008), "[a]ll the essential terms of a contract must be
definite and certain so that the intention of the parties may be
Gibson Foundation sometimes refers to this warehousing 6
agreement in its briefing to us as a "loan agreement."
- 22 - discovered, the nature and extent of their obligations
ascertained, and their rights determined," Cygan v. Megathlin, 96
N.E.2d 702, 703 (Mass. 1951).
The District Court ruled that Norris and Piano Mill were
entitled to summary judgment on Gibson Foundation's breach-of-
contract claim because a reasonable juror could not find based on
the record that all the essential terms of the alleged contract
were definite and certain. Gibson Foundation disagrees.
According to Gibson Foundation, the record suffices to
show that Gibson Brands offered for Norris and Piano Mill to take
possession of the piano on the condition that they would have to
return it to Gibson Brands if and when Gibson Brands asked for it.
Gibson Foundation then goes on to argue that a reasonable juror
could find based on the record that Norris and Piano Mill accepted
this offer by taking possession of the piano.7 Accordingly, Gibson
7 Gibson Foundation also contends that the agreement that Norris and Piano Mill themselves posit as having been struck is just as simple -- the offer was that Norris and Piano Mill could have the piano, so long as they bore the expense of moving it, and the acceptance occurred when Norris and Piano Mill picked up the piano and stored it. Gibson Foundation then argues that under that view of the agreement, there is "everything needed to be a contract [--] mutual assent through offer and acceptance and consideration for each party." But this contention does little to support Gibson Foundation's position on appeal. As Gibson Foundation concedes, Norris and Piano Mill accepted Gibson Brands's offer that Norris and Piano Mill could have the piano so long as they bore the expense of moving it by taking possession of the piano. Thus, if the simple contract at issue were only the one that Gibson Foundation argues even Norris and Piano Mill accept
- 23 - Foundation argues, a reasonable juror could find based on the
record that the claimed warehousing agreement with respect to the
piano has "everything needed to be a contract [--] mutual assent
through offer and acceptance and consideration for each party."
Gibson Foundation describes the consideration as Gibson Brands
being able to avoid storage costs and Norris and Piano Mill
benefitting from having a promotional item to use until Gibson
Brands (and now Gibson Foundation) were to ask for the piano to be
returned. Reviewing de novo, Pleasantdale Condos., 37 F.4th at
732-33, we agree with Gibson Foundation.
As we have previously explained, a reasonable juror
could find on this record that Gibson Brands owned the piano before
and when Norris and Piano Mill picked it up. Gibson Foundation
also points to several facts in the summary-judgment record that
supportably show that Gibson Brands did not transfer ownership of
the piano to Norris and Piano Mill. In that regard, the record
supportably shows that Norris, via an e-mail to Dorn, asked to
use -- not buy -- a piano from Gibson Brands for promotional
opportunities and that Norris, after picking up the piano from the
existed, then there would appear to be no basis in the record for finding that the breach-of-contract claim could survive summary judgment, because, in that event, there would appear to be no basis in the record for finding that the contract had been breached.
- 24 - Hammerstein ballroom, then asked for permission via e-mail to
Gibson Brands to conduct repairs on it.8
In concluding that a reasonable factfinder could find on
this record that the "simple" contract posited by Gibson Foundation
exists, we emphasize that the aspects of the record just described
supportably show that both parties understood which piano was to
be picked up from the Hammerstein ballroom and that this piano was
the one that grounds this claim. Moreover, although the District
Court emphasized to the parties in the final pretrial conference
on October 14, 2022, that there was no "price" specified for this
simple contract, the contract that is being alleged here is not
for the sale of goods. Cf. Jacobson v. Perman, 131 N.E. 174, 175
(Mass. 1921) ("[T]he memorandum was sufficient evidence of [a]
contract . . . [because] it contains all the essential elements of
the contract . . . [including] the quantity sold and the price to
be paid therefor . . . ."). Rather, the consideration that Gibson
Brands allegedly received took the form of avoiding storage
costs -- in consequence of Norris and Piano Mill having taken
possession of the piano -- and not a payment. Thus, we do not
8 Gibson Foundation also raises on appeal the issue of whether the District Court improperly disregarded, as hearsay, evidence of internal e-mails between Gibson Brands employees that tended to show the existence of a warehousing agreement between Gibson Foundation and Piano Mill. Because we find, even without these e- mails, a genuine issue of material fact as to whether a contract exists between Gibson Foundation and Norris and Piano Mill, we do not address this contention.
- 25 - see, and Norris and Piano Mill do not explain, why there must be
a price for a contract of this nature to be valid. And, finally,
while the District Court also suggested at the final pretrial
conference that there was no agreement between the parties as to
duration, a reasonable juror could find on this record that the
parties agreed that Norris and Piano Mill would retain possession
of the piano until Gibson Brands requested that it be returned.
Thus, because we conclude that a reasonable juror could find on
this record that the alleged contract's "essential terms" were
"definite and certain" such that the "intention of the parties
could be discovered, the nature and extent of their obligations
ascertained, and their rights determined," Cygan, 96 N.E.2d at
703, we must reverse the District Court's grant of summary judgment
to Norris and Piano Mill on the breach-of-contract claim.9
At the same time, we also must reject Gibson Foundation's
contention that it is entitled to summary judgment on the claim
and thus that we may not uphold the District Court's ruling to the
contrary. As discussed in Part IV, there is a genuine issue of
material fact as to whether Gibson Foundation or its purported
predecessor in title, Gibson Brands, owned the piano in question.
And that is significant because if Gibson Foundation or Gibson
9 Norris and Piano Mill do not argue that, if there was a warehousing agreement, it was between them and Gibson Brands, not them and Gibson Foundation -- the current plaintiff. We thus do not address that contention.
- 26 - Brands never owned or held title to the piano in question, then
there would be no basis in this record for finding that there was
a warehousing agreement between the parties.
Moreover, Norris and Piano Mill contend that, in any
event, even if a reasonable juror could find based on the record
that Gibson Brands did own the piano before Norris and Piano Mill
took possession of it, a reasonable juror also could find on this
record that, insofar as Gibson Brands owned the piano, Gibson
Brands then gave it away to Norris and Piano Mill as a gift.10
They point to the evidence in the record that supportably shows
that Felber, an employee in Gibson Brands's entertainment-
relations department, told Norris and Piano Mill that the piano
would be "all yours" if Norris and Piano Mill could remove the
piano by the end of the week, which they did. Thus, because we
conclude that Norris and Piano Mill are right that the record
evidence would permit a rational factfinder to determine that the
piano was given to them as a gift, we must reject, for this reason,
too, Gibson Foundation's challenge to the District Court's denial
of its summary-judgment motion.
Of course, should this case proceed to trial, the parties 10
would be able to introduce evidence in addition to what is in the summary-judgment record.
- 27 - VI.
The District Court's award of summary judgment to Norris
and Piano Mill for the breach-of-bailment claim is reversed, while
the District Court's denial of summary judgment to Gibson
Foundation for the breach-of-bailment claim on alternative grounds
is affirmed. In addition, the District Court's award of summary
judgment to Norris and Piano Mill for the breach-of-contract claim
is reversed, while its denial of summary judgment to Gibson
Foundation for the breach-of-contract claim is affirmed. Costs
are taxed in favor of Gibson Foundation.
- 28 -